Evidence of meeting #63 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was alcohol.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Patricia Kosseim  Senior General Counsel and Director General, Legal Services, Policy, Research and Technology Analysis Branch, Office of the Privacy Commissioner of Canada
Yvan Clermont  Director, Canadian Centre for Justice Statistics , Statistics Canada
Samuel Perreault  Analyst, Canadian Centre for Justice Statistics, Statistics Canada
Daniel Therrien  Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Sheri Arsenault  Director, Alberta, Families For Justice
Scott Treasure  President-Elect, Insurance Brokers Association of Canada
Peter Braid  Chief Executive Officer, Insurance Brokers Association of Canada
Douglas Beirness  Senior Policy Advisor, Subject Matter Expert Impaired Driving, Canadian Centre on Substance Use and Addiction
Pascal Lévesque  President, Criminal Law Committee, Barreau du Québec
Benoît Gariépy  Member, Criminal Law Committee, Barreau du Québec
Ana Victoria Aguerre  Lawyer, Secretariat of the Order and Legal Affairs, Barreau du Québec
Clerk of the Committee  Mrs. Julie Geoffrion

4 p.m.

NDP

Wayne Stetski NDP Kootenay—Columbia, BC

Have you looked at statistics from Colorado specifically? I met with the Canadian Nurses Association and was chatting with a nurse about her views on what this could mean in terms of our future. She has a friend who works in an emergency hospital in Colorado and says the number one thing in bringing patients in is related to marijuana use, either from accidents or from a combination of drugs that leads to paranoia. Have you looked at statistics there in terms of accident rates?

September 19th, 2017 / 4:05 p.m.

Director, Canadian Centre for Justice Statistics , Statistics Canada

4:05 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you very much, Mr. Stetski.

Monsieur Ehsassi.

4:05 p.m.

Liberal

Ali Ehsassi Liberal Willowdale, ON

Thank you, Mr. Chair.

My first question is for you, Mr. Therrien. As you're probably aware, yesterday we heard from Professor Hogg. His conclusion yesterday was that random breath testing is a reasonable limitation on the privacy of an individual given the objective that is being pursued. Would you agree with that?

4:05 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

Essentially, yes, with the following explanation. Our position is based on privacy principles, which are informed by the charter, so we're not doing, strictly speaking, a charter analysis. We're doing a privacy analysis. Is privacy impacted? Yes. Is the measure necessary and proportional, akin to a section 1 analysis under the charter, but not quite a section 1 analysis under the charter? Using similar methods but not exactly the same method, we essentially come to the same conclusion but that requires evidence. The government needs to demonstrate that its measure is for a compelling state objective. I don't think there's much question about that.

Is it necessary to come to these methods and are they proportional? That requires an analysis of random testing versus other potential alternatives. Whether other alternatives have been effective and whether this one would be more effective, we're not experts on the matter, but we've read the government's charter assessment, and the arguments and evidence presented seem reasonable. On that basis, we come to the view that, yes, the legislation strikes the appropriate balance from a privacy perspective.

4:05 p.m.

Liberal

Ali Ehsassi Liberal Willowdale, ON

Thank you for that.

We had the opportunity to hear from Robert Mann, from the Centre for Addiction and Mental Health. His testimony suggested that blood tests are the gold standard for drug testing. From your perspective, what would your thoughts be on blood testing in comparison to other types of testing that are available, given that blood testing, obviously, is more invasive?

4:05 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

The way in which the bill before you is constructed, unless I'm mistaken, leads to blood testing. There's a breath test to start with, which leads eventually to better evidence of impaired driving or driving over a certain limit, which is blood testing, so blood testing would be clearly more invasive physically than a breath test. I'm not an expert, but I accept the view that it's more accurate in terms of showing the proportion of alcohol or drugs in one's body. But the law before you starts with breath testing and leads to blood testing for the actual evidence that the offence has been committed. We think that's appropriate.

4:05 p.m.

Liberal

Ali Ehsassi Liberal Willowdale, ON

Okay. Good to hear.

Now I would ask of Mr. Clermont a few questions.

Your slide deck is incredibly interesting. It raises a number of different questions.

The first question I had was on the chart at page 15, which is the police-reported drug impaired rates across the country. There is a huge discrepancy between central Canadian provinces and the territories. What would you attribute that to?

4:05 p.m.

Director, Canadian Centre for Justice Statistics , Statistics Canada

Yvan Clermont

This is very hard to say. We always observe a trend in crime in general with smaller being in the east of the country going toward the western provinces and also going north. This is a general trend we observe. The only difference here is that drug-impaired driving on slide 15 is highest in the Atlantic, and that doesn't follow the trend. We don't have any reasons why. It could be related to a number of factors. It could be related to police intervention in those provinces, but this is counter to the general trend of crime in general.

4:10 p.m.

Liberal

Ali Ehsassi Liberal Willowdale, ON

Okay.

With regard to the chart that you provide on page 24 of your slide deck, that particular chart relates to rates of cannabis possession and trafficking. According to this chart there's a sharp decline since 2009.

4:10 p.m.

Director, Canadian Centre for Justice Statistics , Statistics Canada

4:10 p.m.

Liberal

Ali Ehsassi Liberal Willowdale, ON

Could you provide us with some reasoning as to what you would attribute that decline to?

4:10 p.m.

Director, Canadian Centre for Justice Statistics , Statistics Canada

Yvan Clermont

Once again, this is based on administrative data, and we don't have any reasons to provide with this. It could be related to many factors, such as police forces enforcing these things less than before or police practices. But if I can contrast some other results, cannabis consumption over that same period remained pretty stable.

4:10 p.m.

Liberal

The Chair Liberal Anthony Housefather

Your time is coming to an end, so you can ask only a tiny question.

4:10 p.m.

Liberal

Ali Ehsassi Liberal Willowdale, ON

I'm good.

4:10 p.m.

Liberal

The Chair Liberal Anthony Housefather

You're good.

Members, we don't have time to do a full round, but we have time to take some short questions from committee members who have added questions.

Mr. Anderson.

4:10 p.m.

Conservative

David Anderson Conservative Cypress Hills—Grasslands, SK

Thank you, Mr. Chair. I have a couple of questions here.

Commissioner, I'm a bit surprised at your position on this. I think it's a fairly radical change of the application of justice and the driving laws in this country, so I guess I'm surprised to see you taking this position.

Would you have objected if the law had said basically you could go straight from mandatory testing to blood testing? Would you have said that's too rapid an invasion of privacy? Do you need the steps in that process, or would you have been comfortable with a police officer being able to demand a blood sample right on the spot?

4:10 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

It's an interesting question. The state objective remains the same. Blood testing is definitely more invasive, so it changes the balance somewhat. Perhaps the answer would be different. I would need to think about it. I'm commenting on what is before us.

4:10 p.m.

Conservative

David Anderson Conservative Cypress Hills—Grasslands, SK

In proposed subsection 320.12, it talks about determination of what decides whether someone is impaired or not. In terms of alcohol, it's basically by means of an approved instrument. However, when it comes to a drug, it says an evaluation conducted by an evaluating officer is a reliable method of determining whether someone is impaired.

Does that give you any privacy concerns, that the officer's opinion is going to be a valid measure of whether someone is impaired or not, and then will lead to the next step?

4:10 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

It may raise issues around the validity and the reliability of that method, but not privacy issues per se.

4:10 p.m.

Conservative

David Anderson Conservative Cypress Hills—Grasslands, SK

Do you have any privacy issues around the fact that it depends on what is a three-hour time lag or a two-hour time lag on the requirements?

4:10 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

4:10 p.m.

Conservative

David Anderson Conservative Cypress Hills—Grasslands, SK

Okay.

If someone goes home and hasn't been drinking but they go home and drink, they can easily get to that 0.08 or 0.1 in two hours. Do you have no concerns about that?

4:10 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

The privacy concerns relate to taking breath or blood samples, which deal with the integrity of the person and the privacy of individuals. The other rules that you're referring to have to do with criminal law matters, reliability of evidence and so on, but not privacy per se.

4:15 p.m.

Conservative

David Anderson Conservative Cypress Hills—Grasslands, SK

When you say you support the necessity of proportionality, you consider that to be acceptable in this situation. Why did you write that we might disagree on some particulars, for instance, on the reasonable expectation of privacy of individuals who would be subjected to new mandatory roadside testing? That seems to indicate you have some concerns and issues around that, but you've spent a good part of the hour explaining that you don't. Can you explain? What are you trying to say there that you—